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How Big Is Too Big?

IT is not hard to spot the buildings that Robert M. Scarano Jr., an architect, has designed in New York City: they tend to be a lot bigger than the other buildings around them.

In Williamsburg, Brooklyn, Mr. Scarano's building at 78 Ten Eyck Street is about twice as tall as the modest three-story houses on either side of it. In the East Village, the new building at 4 East Third Street, at the Bowery, rises to 16 stories, far above the other buildings on the block, including a row of 18th-century town houses.

Mr. Scarano has played an active role in the city's current construction boom, particularly in Brooklyn, where he has numerous projects in rapidly changing neighborhoods like Williamsburg and Brighton Beach. His designs have brought him plenty of business from developers rushing to take advantage of rising real estate values.

But the sheer bulk of many of Mr. Scarano's projects has prompted some residents to complain that he ignores the zoning code and puts up buildings that are simply too big, blocking the light and views of their neighbors. And too often, they say, the city has stood by and done nothing.

Stephanie A. Thayer lives in Williamsburg and has been active in protests over a tall building designed by Mr. Scarano that is going up at 144 North Eighth Street. She was also involved in years of community debate that led to a major rezoning in Williamsburg last year, including lower bulk and density restrictions for much of the neighborhood.

In contrast, she said, Mr. Scarano, with his outsize buildings, seems to have "single-handedly rezoned his own little development plots."

Now Mr. Scarano is beginning to draw greater scrutiny.

The city's Buildings Department has accused him of knowingly ignoring building codes or zoning rules in submitting plans for 26 apartment buildings in several Brooklyn neighborhoods. Mr. Scarano was scheduled to attend a hearing on the charges on Thursday, but the hearing has now been postponed. Ilyse Fink, a spokeswoman for the Buildings Department, said the agency is continuing to look at other projects submitted by Mr. Scarano.

According to the petition outlining the charges before the city's Office of Administrative Trials and Hearings, at least 17 of the buildings cited in the charges were designed with more floor area than was allowed under zoning rules.

At the core of the case prepared by the Buildings Department is the contention that Mr. Scarano abused the honor system that allows architects and engineers to police themselves by approving their own building plans. Known as the professional certification program, the honor system was instituted under the Giuliani administration and was meant to trim costs by cutting the workload for the city's plan examiners. It was also intended to eliminate obstacles to building in a city where, at the time, construction projects could be delayed for months while builders waited for plans to be approved.

By participating in the professional certification program, architects guarantee to the city that their plans meet zoning and building codes. But the city has experienced a tremendous boom in new construction in the last several years, and officials have begun to worry that the honor system leaves too much room for architects and developers to run roughshod over zoning rules and safety regulations.

In response, the Buildings Department has drafted a series of changes to its disciplinary procedures that would make it easier to pursue architects and engineers who it believes are code scofflaws -- one proposal would give the department's commissioner the right to pre-emptively strip them of the right to certify their own plans. The proposed changes were presented to a group of industry members last Tuesday.

If the city succeeds in its case against Mr. Scarano, he will be required to have all his plans approved by city examiners. He would be the first architect in more than a year to be barred from signing off on his own plans under the professional certification program, according to data on disciplinary actions posted online by the Buildings Department.

Ms. Fink said one reason there were few recent cases was that several staff members left the department's investigative unit last year. She said that the unit has since hired more investigators.

The complaint about many of Mr. Scarano's buildings is not that they are too tall or break height restrictions. Instead, the city contends that they are too big in another sense: they exceed limits on square footage, making them too bulky.

The building at 78 Ten Eyck Street, which has 11 condos, is typical of many of the buildings designed by Mr. Scarano. In plans submitted to the city in 2003, he described it as a four-story building. But it is at least 55 feet tall, more typically the height of a five- or six-story building, and it dwarfs its two- and three-story neighbors.

That is because Mr. Scarano included three mezzanine floors, turning the apartments into virtual duplexes, with an upstairs and a downstairs and a double-height ceiling in the living room.

But when it came time to calculate the square footage of the building to show that it qualified under the zoning code's floor-area limits, Mr. Scarano said the mezzanine floors were exempt and subtracted their 2,442 square feet from the total.

The Buildings Department reviewed the plans for 78 Ten Eyck early last year and stopped work on the condo project, informing the developer, Lipe Gross, that the building, which was nearing completion, was too big.

In response, city records show, Mr. Gross paid $200,000 to a neighbor to transfer 2,000 square feet of air rights to his property in an attempt to make the building legal. He has also agreed to make some of the mezzanines smaller, further reducing the building's square footage.

Mr. Gross said that when the issue of the floor area arose last year, Mr. Scarano told him that in his understanding of Buildings Department rules, he was not required to count the mezzanines because the low ceiling height, just over seven feet, exempted them from floor area tabulations. "He was understanding that it was kosher," Mr. Gross said.

Mr. Scarano refused requests for an interview. A lawyer for Mr. Scarano, Raymond T. Mellon, said that neither he nor Mr. Scarano would answer questions related to the disciplinary case before the hearing. Mr. Mellon has filed papers with the city denying the charges and saying that the city's interpretation of the building and zoning rules was subjective.

Gloria Sinchi literally lives in the shadow of 78 Ten Eyck, in a rented apartment in an English basement on Leonard Street. She said her three children no longer play in the small concrete yard behind their apartment. That is partly because of the construction, she said, but more because the yard is now deep in the shadow of its towering neighbor.

The building at 78 Ten Eyck, which is called Tower 78 in marketing materials, occupies an L-shaped lot, and Ms. Sinchi's yard is hemmed in by the two legs of the L, with high walls on both sides. "It's all surrounded," she said.

Mr. Gross took his condos off the market last spring after the city audit. But other condo buildings designed by Mr. Scarano have been completed and are now occupied by new apartment owners.

Mr. Scarano designed the buildings at 63 and 69 Stagg Street in Williamsburg, around the corner from 78 Ten Eyck. Here too, Mr. Scarano described the Stagg Street buildings, in documents filed with the city as 55-foot-tall buildings, each with four stories and three mezzanines. In drawings submitted to the city, Mr. Scarano estimated that the maximum allowable floor area permitted for each of the two buildings was 6,600 square feet.

Nonetheless, the drawings indicate each building has a total of more than 10,000 square feet of space. To account for the difference, Mr. Scarano deducted from his zoning calculations for each building nearly 1,800 square feet of mezzanine space and more than 2,000 square feet of basement space that made up the lower level of a ground-floor duplex. Each building contains eight units.

The Buildings Department audited Mr. Scarano's plans last spring and let the work continue, then gave the buildings certificates of occupancy in July.

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But now the city contends in its disciplinary complaint that Mr. Scarano's calculations were faulty and that the mezzanine and the basement space should have been counted as part of the overall floor area of the buildings.

Ms. Fink, the Buildings Department spokeswoman, said the city's investigation of Mr. Scarano applies only to the drawings and other documents he submitted. In some cases, she said, zoning violations may have been addressed to bring the buildings into compliance before they were completed. But she said she was not permitted to discuss details of the projects, including the status of finished buildings like the ones on Stagg Street.

While several of the buildings have been completed, some are under construction and work on others has not yet begun. Ms. Fink said the city would eventually have to consider what to do with completed buildings that may have too much floor area or may contain other violations.

The mezzanine has become something of a Scarano signature and has made Mr. Scarano's services very much in demand. Developers, as a rule, are eager to maximize the square footage of their buildings, and in many cases, Mr. Scarano's mezzanines have given them a way to do just that.

Mr. Scarano has been prolific in recent years, and an analysis of Buildings Department data online suggests that the buildings cited in the city's case may be part of a broader pattern. According to the online data, Mr. Scarano has submitted plans for at least 299 new buildings in Manhattan, Brooklyn, Queens and Staten Island since the early 1990's; 44 of those have been completed.

Among Mr. Scarano's filings are plans for about 150 buildings containing one or more mezzanines, virtually all of those coming in the last six years. Approximately two-thirds of the buildings with mezzanines are described in Mr. Scarano's filings as having four stories and being at least 54 feet tall, suggesting the designs have similarities to the Ten Eyck and Stagg Street projects already targeted in the city's investigation.

Mr. Scarano has incorporated mezzanines into plans for much larger buildings as well. One of his more ambitious projects is a 172-foot-tall condo tower with medical offices planned for 62 Brighton Second Place in Brighton Beach, Brooklyn, in an area of mostly one- and two-story bungalows. Each of the proposed building's 10 apartments has a mezzanine with a terrace and bathroom.

But in zoning calculations submitted with his drawings, Mr. Scarano deducted more than a third of the building's total residential square footage, including all the mezzanine space. In this way, a 14,000-square-foot building manages to squeeze into a 9,024-square-foot zoning envelope. The building is not one of those cited in the city's disciplinary case against Mr. Scarano, and the project was issued a preliminary permit in January.

Whether mezzanines should be counted for zoning purposes will most likely be a major issue when an administrative law judge decides the case involving Mr. Scarano. Zoning rules include mezzanines in a list of building features that must be counted as floor area. But there is at least one exception. The Buildings Department's guidelines for architects and engineers say that mezzanines intended as storage space can be omitted from floor-area calculations if they have ceiling heights of five feet or less and are accessible only by a ladder.

Mr. Scarano routinely labels mezzanines as storage space in his drawings and related documents. But in case after case, they contain windows and bathrooms or laundry rooms, are reached by a staircase and are clearly intended as living space.

While neighborhood residents accuse Mr. Scarano of breaking the rules, other developers ask if the rules are being applied evenly. Kris Corey is completing construction of a pair of four-story rental buildings at 264 and 268 Devoe Street in Williamsburg. In recent months he has watched as another developer put up a building designed by Mr. Scarano at 270 Devoe next door. Mr. Scarano's building -- described in filings with the city as four stories with two mezzanines -- is taller than Mr. Corey's buildings and appears to have substantially more square footage.

Mr. Corey said he asked his own architect about the difference. "I said to him, 'Did we shortchange ourselves?' " Mr. Corey recounted. "And he said, 'You're built to the max by the letter of the law.' "

Mr. Scarano's building on Devoe Street has not been audited by the city and is not included in the Buildings Department case.

Kevin Shea, a lawyer and expediter who helps architects and building owners negotiate the labyrinth of zoning rules and Buildings Department procedures, has been waging a campaign against Mr. Scarano's 16-story building on East Third Street at the Bowery.

Along the way, he said, he has confronted what he contends is a willingness of the Buildings Department to ignore apparent zoning violations or to find creative ways to make zoning rules fit Mr. Scarano's building, rather than the other way around.

Mr. Shea submitted a brief to the city's Board of Standards and Appeals last November detailing numerous objections to the building, which he says has many zoning violations and substantially more square footage than should be allowed. This building is also separate from the city's disciplinary case with Mr. Scarano, and largely involves different zoning issues.

To what degree it may be overbuilt depends partly on what the building is used for. That is because the zoning rules allow different amounts of square footage for apartments, for which it was originally designed, than for hotel rooms, for which it is currently being reconfigured.

Mr. Shea contends that it is too big in any case. "I think four floors should come off the top," he said.

An interest in the building was sold last year to the group of developers that created the fashionable Maritime Hotel on West 16th Street at Ninth Avenue. They hired a new architect and a zoning lawyer, and have been in discussions with Mr. Shea and city officials.

"This doesn't seem to be an egregious violation of the zoning," said Richard Born, one of the new investors in the project. "There are issues, but they seem to be resolvable."

Mr. Shea was reluctant to be quoted as saying anything critical of the Buildings Department, since he works with it on a regular basis, but he said he felt compelled to speak up about Mr. Scarano and what he sees as a willingness of officials to bend the rules.

Mr. Shea said he first notified the Buildings Department in May 2004 that he believed there were problems with the design of the East Third Street building. The department conducted an audit that raised numerous concerns, but after a brief halt, city officials let work proceed, and the building is now largely completed.

In his brief submitted to the Board of Standards and Appeals, Mr. Shea accuses the Buildings Department of coining novel interpretations of its own rules in an effort to let Mr. Scarano's building stand. "If the answer to how big a building is or what you can do in the construction industry is 'whatever you can get away with,' then I'm out of business," Mr. Shea said.

He said the Buildings Department had "lost control" of the honor system that allows architects and engineers to sign off on their own work. "The program rests on a promise and a threat," he said. "The promise is that of the professional, that his plans conform to the code and the zoning resolution. And the threat is that, if the Buildings Department finds out otherwise, they're either going to discipline the architect or order remedial measures to bring the building into compliance.

"Four East Third Street is what happens when an empty promise is met by an empty threat."

Correction: April 16, 2006, Sunday The main front-page article in the Real Estate section today, about Robert M. Scarano Jr., an architect who has been accused by the New York City Buildings Department of ignoring building codes or zoning rules when submitting plans for his projects, misstates the number of sites named in a disciplinary action against him. It is 25, not 26.